Holland and Marquez v. the U.S. Forest Service and Ralston Resorts
The following reports are from Couloir Magazine and include a mixture of editorial commentary and facts about the case. The case was over a backcountry (out-of-bounds) avalanche incident at Arapahoe Basin in 1993, the case was scheduled for hearing and dropped during 1996.
Forest Service, Ski Area Fight to Defend Public Access
By Bruce Edgerly
In law books and dictionaries, extortion is defined as "the offense of obtaining money by coercive means or threats." In most states, extortion isn't just an offense, it's a heinous crime. When a street-smart con man commits this act in a back alley, he can expect to do serious time. But when a well-educated lawyer performs extortion in the back conference room of your local courthouse, he can expect a handsome fee.
The upcoming case, Holland and Marquez v. the U.S. Forest Service and Ralston Resorts, is a wrongful death suit involving an out-of-bounds avalanche outside Colorado's Arapahoe Basin ski area. We think the case is an act of extortion on the part of the plaintiffs' attorneys. But instead of the real criminals ending up behind bars, it could be us backcountry skiers -- and the doors slamming shut behind us could be backcountry access gates all across North America.
The case is scheduled for a jury trial in U.S. District Court this October in Denver. It was filed last year by the attorneys for William and Karen Holland and Philip Marquez, all of eastern Colorado. They are the parents and husband, respectively, of Sheila Marquez, a 24-year-old skier who died in a backcountry avalanche in February, 1993 after leaving so-called "A-Basin" through a U.S. Forest Service (USFS) access gate. The plaintiffs claim that both the ski area and the forest service are responsible for her death because they failed to adequately warn her of the hazards beyond the boundary. They're asking for "unspecified" damages to be determined later.
What could be more adequate than over two feet of new snow, a high avalanche warning, and a sign at the gate that lists each hazard, one by one? It's clear to us that the plaintiffs' case doesn't stand a snowslide's chance in heck -- and that their lawyers are probing deeply and desperately for a fat, out-of-court settlement. Our advice to A-Basin and Uncle Sam: don't be tempted.
As North America's highest ski area, A-Basin is surrounded by some of the most exciting off-piste terrain in North America. It runs the gamut from 14,000-foot Torrey's Peak to the east to the lower-angled Beavers area to the west. All of this land is federally owned. It's managed by the U.S. Forest Service (funded, of course, by us taxpayers), which has long held a strong policy of allowing unrestricted access to public lands. In 1988, however, the forest service requested A-Basin officials to close a portion of the boundary, but to leave an access gate open at the top of Norway chairlift. This was meant to steer potential off-piste skiers away from particularly hazardous areas, but to maintain the opportunity for full public access to the surrounding backcountry. To prevent what they considered "spontaneous" excursions though the gate, it was strategically placed out of sight from the lift and far enough uphill to require a short hike. At the gate itself, the forest service posted a sign which says "Notice to Backcountry Skiers," then lists every potential hazard under the sun. It continues: "USFS does not manage or control all of these occurrences. It your responsibility to know the hazards involved in your activities and to use proper safety procedures and equipment to minimize risks."
According to witness statements, Marquez, an inexperienced backcountry skier, followed two friends, Timothy Ringgold and James Mohnaupt, through the gate at about 3:30 p.m. on February 13, 1993. Several feet of fresh snow was on the ground and forest service-sponsored avalanche reports estimated the slide danger as high. Ringgold and Marquez were resting on the top ridge of the Beavers while Mohnaupt made first tracks. He set off a slide 40-50 yards wide and about 50 yards long. He and Ringgold skied out of it, according to statements, but Marquez did not. None of the skiers had shovels or transceivers. By the time help arrived over an hour later, Marquez had suffocated four feet beneath the surface.
The accident was undoubtedly tragic. But it was also avoidable. Not by erecting more ropes, signs, and closed gates, but through common sense, respect for the mountain environment, and taking a personal stake in the risks that were taken. According to Ringgold, none of the three skiers had any education in avalanche safety, none had appropriate backcountry equipment, and they knew they were taking a risk. "I knew we were leaving the ski area," Ringgold told Couloir in a November interview. "I knew we were taking a little bit of a risk -- but that it [an avalanche] would never happen to me." Furthermore, they walked directly past the sign, but ignored it. "I'd gone back there so many times, I don't read it anymore," Ringgold explained. By settling out-of-court, wouldn't we be subsidizing this kind of blatant irresponsibility?
In the existing U.S. legal system, it doesn't matter whether or not you have a legitimate case. What matters is the depths of the pockets involved and the talents of the respective attorneys. Just ask O.J. Like The Juice, the Hollands and Mr Marquez may have appointed the right man for the job. His name is Ralph Cantafio of Steamboat Springs and he's got a track record for collecting a ridiculous out-of-court sum from the forest service for the family of a hiker who was killed by lightning. The hiker had decided to seek shelter from a electrical storm in a steel firetower at the top of a Colorado peak. Cantafio didn't collect because he had a good case. He collected because the suit was too costly and time consuming for the understaffed, budget-crunched forest service to defend.
A-Basin contends that under the Colorado Ski Safety Act, it has no responsibility for skiers outside its permitted boundary. The forest service contends that obviously it can't mark every possible hazard in its massive jurisdiction of federal land. Plus, it directly contradicts the forest service's clearly stated policy of unrestricted public access. But Cantafio and his L.A.-based co-counsel, Mark Ozzello, claim there's ample case law out there to justify a higher "duty to warn" on the part of the defendents -- and even to justify limiting the public's access outright.
"Whether it conflicts with public policy isn't something I look at," Cantafio told Couloir, "We look at what the common law says about negligence and responsibility."
Since the A-Basin case mainly revolves around Colorado statutes, its outcome may or may not set any huge nationwide legal precedents. But the fact that it has to be defended makes resort managers skittish, according Michael Berry, Director of the National Ski Areas Association. Even if the defendants win, he says ski areas may still decide to restrict backcountry access -- simply to curb any potential increases in legal and insurance costs.
"There's a role for us to play in providing access to the backcountry," Berry asserts. "We'd love to provide this to people. But the way things are going, I think you'll soon see a more restrictive level of rules."
Our message to A-Basin and the forest service: stay out of the back conference room. Let a jury decide the case. Then collect from Vito -- er, Mr. Cantafio -- for filing a frivolous suit.
A-Basin lawsuit dismissed Forest Service still in court.
Update August 1, 1996: We left our friends at Ralston Resorts stuck in court fighting a frivolous lawsuit (See "Legalized Extortion," Couloir VIII-3) for an unfortunate death by avalanche that occurred while skiing terrain outside the A-Basin ski area. The family of the deceased hired a lawyer with a reputation for extorting money from the government to sue A-Basin and the US Forest Service. This past summer the case against Ralston Resorts was dismissed. The status of the lawsuit against the US Forest Service is still pending a decision. Attorney for the US Forest Service, Stephen Snyder is filing documents to support the governments request that the lawsuit be dismissed against them as well.
The victim, Sheila Marquez, accessed an area called The Beavers, where the avalanche danger is known to be high. The accident occurred the day after several feet of snow had fallen. To access the area she skied, Sheila and her partners, Timothy Ringgold and James Mohnaupt, had to go through a dedicated access gate with a posted sign warning of potential dangers. No one in the party had avalanche beacons, shovels, or knowledge of avalanche rescue procedures.
Thanks to everyone who read and wrote to Ralston Resorts and the US Forest Service about the wasteful, irresponsible nature of the lawsuit Ralph Cantafio filed on behalf of Marques next of kin. Your letters helped make the difference.
